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Theodore andrews v. Kathleen Dickinson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 5, 2011

THEODORE ANDREWS, PETITIONER,
v.
KATHLEEN DICKINSON, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 13, 2011, the undersigned found that the petition failed to state a cognizable claim for federal habeas relief and dismissed this action without prejudice to filing a civil rights action. On the same day, the court entered judgment and closed the case. Pending before the court is petitioner's motion for a certificate of appealability.

In the court's final order, the undersigned inadvertently failed to address the issue of a certificate of appealability. A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has made a substantial showing of the denial of a constitutional right in the following issue(s) presented in the instant petition: whether petitioner's habeas petition states a cognizable claim for federal habeas relief.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for a certificate of appealability (Doc. No. 8) is granted;

and

2. A certificate of appealability is issued in the present action.

20111005

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